P L D 2011 Quetta 26
Before Jamal Khan Mandokhail, J
CHAKAR KHAN and 3 others ---Petitioners
Versus
AZAD KHAN and 5 others ---Respondents
Civil Revision No.50 of 2009, decided on 10th January, 2011.
(a) Civil Procedure Code (V of 1908) ---
----S. 96 ---Single appeal against common judgment/decree passed in two suits consolidated
by Trial Court ---Maintainability: --Two suits once consolidated would cease to have
independ ent existence, wherein only once judgment/decree could be passed to regulate both
suits---Trial Court had framed consolidated issues in both suits relating to same subject -
matter ---One appeal under S. 96, C.P.C., was allowed from a decree ---Common
judgment /decree of Trial Court could be challenged through a single appeal, for appeal being
a continuation of suit ---Such appeal was maintainable ---Principles.
Allah Bakhsh v. Mst. Shamshad Zohra and others 1985 SCMR 959 rel.)
(b) Civil Procedure Code (V of 1908) ---
----S. 151 ---Consolidation of suits ---Scope ---Suits involving common questions of law and
facts should be consolidated in order to avoid multiplicity of litigation and conflicting
findings ---Disposal of such suits through one and same court wou ld be proper ---Purpose of
consolidation of suits would be to minimize cost of litigation ---Two suits once consolidated
by an order of court would cease to have independent existence, thus, only one
judgment/decree could be passed to regulate both suits.
(c) Specific Relief Act (I of 1877) ---
----Ss. 8 & 42 ---Balochistan Tenancy Ordinance (XXI of 1978), Ss.33, 44 ---Civil Procedure
Code (V of 1908), S. 9 ---Suit for declaration and possession ---Non-payment of share in
agricultural produce by defendant -tenant---Defendant denied relationship of landlord and
tenant between parties and claimed ownership over suit land for being in possession thereof
for a considerable long period ---Defendant's plea that plaintiff could claim possession of suit
through Revenue Court, but not civil court ---Validity ---Had there been any relationship of
landlord and tenant between the parties, then remedy under Balochistan Tenancy Ordinance,
1978 could have been filed ---Cause of action under S. 42.of Specific Relief Act, 1877
accrued to plaintiff on denial of his title to suit land by defendant --- Such suit was competent
in circumstances.
(d) Possession ---
----Mere possession over a land for any long period would not entitle a person to become its
owner.
(e) Civil Proced ure Code (V of 1908) ---
----S. 115 ---Revisional jurisdiction of High Court ---Scope ---Such jurisdiction could be
exercised only in case of violation of any law by courts below.
Khushnood Ahmed Khan for Petitioner.
Muhammad Sadiq Ghuman for Responde nts.
Date of hearing: 3rd December, 2010.
JUDGMENT
JAMAL KHAN MANDOKHAIL, J .---Briefly stated facts of the case are that the
respondents filed a suit for declaration, permanent injunction, consequential relief and
possession against the predecesso r of the petitioners.
It is alleged that the petitioners are the owners of the property bearing Khasra Nos.513, 515
and 516, situated at Mouza, Sultan Kot, Tehsil and District, Sibi (called hereinafter, the land
in dispute). The possession of the propert y was given to the father of the petitioners for
cultivation on the basis of Bazgari. Since the share of the petitioners out of the produce has
not been paid to them, therefore, they have filed the present suit for the recovery of the
possession.
The sui t was contested by the predecessor of the petitioners by way of filing his written
statement, wherein, several legal objections regarding maintainability of the suit were raised.
One of the legal objections of the petitioners was in 'respect of the jurisdi ction of the Civil
Court. It is stated that the plaintiffs could have claimed through the Revenue Court, as such,
the present suit was not competent. On merits too, the petitioners totally denied the ownership
of the respondents and claimed their possessio n as owners. They have straightaway denied
the relationship of the landlord and the tenant between them and the respondents.
During pendency of the suit, the petitioner also filed a suit for the cancellation of the
mutation entries in respect of the land in dispute, which were on the name of the respondents.
Both the matters were consolidated and tried. On conclusion of the cases, the Trial Court,
vide the judgment and decree dated 31st January, 2009, dismissed the suit of the respondents
and decreed th e suit of the petitioners. Feeling aggrieved, the respondents preferred an appeal
before the Court of the District Judge, Sibi, who reversed both the judgments and decrees.
Resultantly, the suit filed by the respondents was decreed and the suit filed by th e petitioners
was dismissed, hence this petition.
2. The learned counsel for the petitioners stated that the appellate Court has erred in the law
by not considering the legal objections raised by the petitioners in respect of the
maintainability of the a ppeal and the suit of the respondents. He contended that single appeal
against two judgments and decrees was not competent, but the Appellate Court has wrongly
entertained it. It has not properly dilated upon the evidence and material available on record
and it, while dismissing the suit of the petitioners by maintaining it as barred by time, has not
considered the fact that, the limitation starts from the date of knowledge. The moment the
petitioners came to know about the fraudulent mutation entries, they immediately filed a suit,
which was very much within time. According to him, the judgment and decree of the
appellate Court are not well -reasoned. The learned counsel, at last, submitted that in view of
what has been stated, the impugned judgments and dec rees passed by the appellate Court are
not only without jurisdiction, but are also void, illegal and unlawful.
3. On the other hand, the learned counsel for the respondents submitted that both the suits
were consolidated and were decided through a common judgment. Since the entire
proceedings were consolidated, therefore, a single appeal was riled against the judgment and
decree of the Trial Court. The learned counsel states that in the appeal, the respondents
challenged the findings of the Trial Court on both the suits. Since, a common judgment and
decree were passed, therefore, the single appeal was competently filed.
He argued that as regards the objection on the maintainability of the suit is concerned, after
the denial of the petitioners regarding t he relationship of the landlord and the tenant, the only
remedy left for the respondents was to file a suit for possession under section 42 of the
Specific Relief Act. Moreover, the respondents were recorded as tenants of the Provincial
Government. In view of a policy of the Government, the ownership of the land was
transferred to the tenants on the basis of which, the respondents became owners of the land. It
is sufficient proof of the fact that, the respondents were already in its possession as tenants.
Presently, the possession of the petitioners over the land in dispute is illegal, therefore, the
respondents are entitled to claim the possession from them:
The learned counsel submitted that on the other hand, the suit of the petitioners was
hopelessly b arred by time, therefore, it has rightly been decided by the Appellate Court. The
petitioners have no right, title or interest into the property in dispute, therefore, the Trial
Court, after considering the entire material, has come to a just and proper co nclusion.
4. I have heard the learned counsel for the parties and have perused the record. In the first
instance, let me dilate upon the objection raised by the petitioner on -the maintainability of
the appeal. It is an admitted tact that, initially, bot h the suits were consolidated by the Trial
Court and, finally, these were disposed of through a common judgment and a decree. The
respondents have challenged the judgment and decree through a single appeal.
If common question of law and facts are involve d in the suits, with a view of avoiding the
conflicting findings, it is just and convenient that the suit be disposed of by one and the same
Court. In such like cases, normally, the suits are being consolidated in order to avoid the
multiplicity of the lit igation and the contrary demands. One of the purposes of consolidation
is to minimize the unnecessary cost of the litigation. When by an order of the Court, two suits
are consolidated, these have no independent existence. As a result of the consolidation, only
one judgment and decree could be passed to regulate both the suits.
Admittedly, in present case, both the suits were consolidated by the Trial Court for the reason
that these relate to same subject matter on the premises. Out of both the suits, cons olidated
issues were framed and decided the suits by one and a common judgment and a decree. An
appeal is governed by section 96 of the C.P.C. It says that an appeal lies against every decree.
In this Section, the word "An" has been used, which means one o r single. Thus, from a
decree, only one appeal is allowed. The appeal is since a continuation of the suit, therefore,
through a single appeal, a consolidated judgment and a decree of the Trial Court would be
challanged. Reliance is placed of the case of Al lah Bakhsh v. Mst. Sharnshad Zohra and
others, reported in 1985 SCMR 959. Relevant portion whereof is reproduced herein -below: --
"As provisions of C.P.C. other than sections 10 and 11 are inapplicable to the
proceedings the technical objection of filing of a single appeal against a consolidated
judgment when it was manifestly directed against the decision in both, would not
stand in the way adjudication in accordance with law.
We do not consider it a fit case for leave to appeal. The petition is dismiss ed."
The second objection of the petitioner was in respect of the maintainability of the suit on the
ground that, the matter relates to the Tenancy Ordinance. It is important to mention here that,
in the written statement, the petitioners categorically d enied the relationship of the landlord
and the tenant. They claimed their ownership in capacity of being in the, possession of the
land in question for a considerable long period. Had there been any relationship of the
landlord and the tenant, then, of cou rse, a remedy under the Balochistan Tenancy Ordinance
could have been filed, but the moment, the title of the respondents is denied, then, the cause
of action, within the meaning of section 42 of the Specific Relief Act, accrues to the
respondents, therefo re, the present suit for the possession was quite competent.
As, far as merits of the case are concerned, it has come on record through the mutation entries
that, the respondents were initially recorded as Morushi Bazgar of the Government of
Balochistan. After pronouncement of a policy by the Government, all the occupancy tenants
were awarded the ownership rights. Taking its advantage, the respondents, being tenants,
applied through proper channel for the allotment of the land in question, which was grant ed
to them after fulfillment of all the formalities. The documentary proof is evident of the fact
that, right from the beginning, the respondents were in possession of the property in question.
Pleadings of the parties show that, presently, the land in dis pute is in possession of the
petitioners, but they claimed their possession for decades. Perusal of the statements of the
witnesses does not support the contention of the petitioners regarding long standing
possession. In any case, the possession of the pe titioner over the land in dispute is illegal and
unlawful. Even otherwise, mere possession over a land for how long it may be, does not
entitle a person to become an owner.
It is also a fact that the suit of the petitioners for cancellation of the mutati on entries has been
dismissed for the reason that they have not been able to show their ownership. Since the
petitioners have not been able to prove their entitlement in respect of the land in dispute, on
the other hand, the respondents have successfully b een able to prove their previous
possession and, thereafter, they are justified in claiming the possession of the property from
the petitioners.
The Trial Court, while deciding the appeal, has thoroughly and properly considered the
evidence and material available on record, which findings do not suffer from any misreading
and non -reading of the evidence.
The jurisdiction of this Court under section 115, C.P.C. is limited, which can only be
exercised if any violation of law has been committed by the Cour ts below. The learned
counsel for the 'petitioners has failed to point out any infringement of law, any illegality or
irregularity in the impugned judgment and decree warranting interferenc e' by this Court.
5. Thus, in view of what has been stated and di scussed hereinabove, the petition is hereby
dismissed.
6. These are the reasons of my short order dated 3rd December, 2010.
S.A.K./9/Q Revision dismissed.This judgment is reproduced from a publicly available source for informational purposes and does not constitute legal advice. If you believe this listing contains an error,
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